Is Sgt. Bowe Bergdahl a hero or a deserter?

June 2, 2014: Despite release, questions still remain

WASHINGTON - The case of Army Sgt. Bowe Bergdahl, held by the Taliban since 2009, has arisen again as the U.S. and other countries engage in diplomatic efforts to free him.

But if he is released, will America's only prisoner of the Afghan war be viewed as a hero or a deserter?

While tattered yellow ribbons still adorn utility poles in his native Hailey, Idaho, others are expressing conflicting thoughts about Bergdahl's plight as the war winds down, with President Barack Obama threatening to withdraw all U.S. troops by year's end unless the Afghan government signs a crucial security agreement.

They are convinced that on June 30, 2009, just a few months after he arrived in Afghanistan, Bergdahl willingly walked away from his unit, which was deployed in Paktika province in eastern Afghanistan, adjacent to the border with Pakistan. While they do want Bergdahl home, they think he should have to answer allegations that he deserted his unit.

Bergdahl was last seen in a video the Taliban released in December.

At this year's Grammys, celebrities were photographed wearing Bowe bracelets. In the past two years, billboards with Bergdahl's face have popped up in major cities. One shows a smiling Bergdahl, in an Army uniform, with the message: "He fought for us. ... Let's fight for him!"

A transcript of radio intercepts, publicly released through Wikileaks, indicates that Bergdahl, then 23, was captured while sitting in a makeshift latrine.

"We were attacking the post he was sitting," according to a radio intercept of a conversation among insurgents. "He had no gun with him. ... They have all (the) Americans, ANA (Afghan National Army), helicopters, the planes are looking for him. Can you guys make a video of him and announce it all over Afghanistan that we have one of the Americans?"

Rolling Stone magazine quoted emails Bergdahl is said to have sent to his parents that suggest he was disillusioned with America's mission in Afghanistan, had lost faith in the U.S. Army's mission there and was considering desertion.

Bergdahl told his parents he was "ashamed to even be American." Bergdahl, who mailed home boxes containing his uniform and books, also wrote: "The future is too good to waste on lies. And life is way too short to care for the damnation of others, as well as to spend it helping fools with their ideas that are wrong."

The Associated Press could not independently authenticate the emails published by the magazine in 2012. Bergdahl's family has not commented on the allegations of desertion, according to Col. Tim Marsano, a spokesman for the Idaho National Guard. Marsano is in regular contact with Bergdahl's mother, Jani, and father, Bob, who has grown a long, thick beard and has worked to learn Pashto, the language spoken by his son's captors.

A senior Defense Department official said that if Bergdahl is released, it could be determined that he has more than paid for leaving his unit - if that's what really happened - "and there's every indicator that he did."

Still, it's a conundrum for commanders under the Uniform Code of Military Justice and the equal application of the law, according to the official, who spoke on condition of anonymity because he was not authorized to publicly discuss the Bergdahl case.

Eugene R. Fidell, who teaches military justice at Yale Law School, said if there is evidence that Bergdahl left his unit without permission, he could be charged with being absent without leave (AWOL) or desertion.

Desertion during a time of war can carry the death penalty. But Congress never passed a declaration of war with respect to Afghanistan, and neither President George W. Bush nor President Barack Obama has determined that U.S. military operations in Afghanistan make this a "time of war" for the purposes of the Uniform Code of Military Justice, Fidell said.

Were Bergdahl to be charged with desertion, the maximum penalty he would face is five years in prison and a dishonorable discharge, if it's proved that he deserted with the intent to avoid hazardous duty or to shirk important service. A case of AWOL, ended by the U.S. apprehending him, would not require proof that he intended to remain away permanently. The maximum punishment for that would be a dishonorable discharge and 18 months' confinement, he said.

"Someone is going to have to make a decision, based on a preliminary investigation, as to whether this is a desertion or AWOL rather than simply having the bad luck to have fallen into the wrong hands," Fidell said.

"The command can say 'This fellow has been living in terrible conditions. We don't approve of what he did but we're not going to prosecute him,'" he said. "Or, the military could prosecute him as a way of signaling to others that 'Look, you can't simply go over the hill.' ... It's quite an interesting set of issues that will have to be addressed as a matter of both policy and law."

Desertion can be difficult to prove, said Ret. Maj. Gen. John Altenburg Jr., a Washington attorney who served 28 years as a lawyer in the Army.

"There has to be some evidence that he intended never to come back - that he intended to remain away from his unit permanently," Altenburg said.

"I don't know if they'll charge him with anything. It will depend on the circumstances of his return and what he has to say."

Mary Schantag, chairman of the P.O.W. Network, an educational nonprofit group founded in 1989, said it's futile to speculate. "He is an American soldier in enemy hands. Period. Bring him home," she said.

Rep. Duncan Hunter, a member of the House Armed Services Committee and former Marine who served two tours in Iraq and one in Afghanistan, agreed.

"It's hard to imagine any circumstance where his captivity won't be viewed as time served," said Hunter, R-Calif. "The first order of business is securing his release and I don't think it does an ounce of good to begin contemplating that far ahead when the focus is on getting him home."

Chrissy Marsaglia and her husband, ex-Marines from outside Seattle who launched a bring Bowe home project in 2012, don't speculate about the details of his capture or efforts to release him. They just want him home. Through donations, the small group has worked to raise awareness of Bergdahl's captivity on more than 90 billboards in U.S. cities.

"Every day, we meet people who don't know about him," she said